Sovereign immunity does not bar an ADEA action against a state if brought by EEOC, a federal agency. After trial on age discrimination charges, the court need not address the elements of a prima facie case under McDonnell-Douglas, but may do so. Four oldest employees were terminated from state university's press and their duties reassigned to workers in their 20's or 30's. Fact that some of the persons who replaced plaintiffs were less than 10 years younger does not defeat jury verdict in their favor. Defendant's written "justification" for its decision did not address the workers' own assessments of their skills and relied on out-of-date resumes; it also suggested that four would need additional training that their younger replacements also lacked and gave younger worker credit they did not deserve. The "justification" also included code words–referring to one terminated workers' "pre-electronic experience" and need to come "up to speed" on new trends, the need for "new vision" and greater "agility." The fact that new workers were hired for limited terms does not defeat the inference of discrimination. Decision makers' reference to jumping "legal hurdles" and ignorance of ADEA's floor age of protection supports the jury's wilfulness finding.

After defendant discontinued the product line named for plaintiff, then aged 71, he was transferred to a quality control job but claimed he could not stay on his feet as required by that job and was placed on leave. He claimed the pain continued, but a workers' compensation investigator videotaped him taking long walks and he was terminated for making false statements about his condition. Comments about his age made by the previous supervisor 18 months before the discharge do not constitute direct evidence of age discrimination, and because the discharge came more than six months after he filed an EEOC charge, his retaliation claim fails. His job elimination and retaliatory transfer claims were also properly dismissed as moot because, due to his subsequent termination, no remedy is available.

Plaintiff did not present evidence showing that the three reasons stated for his discharge–chronic job performance problems, failure to communicate with co-workers and inappropriate disparagement of management--were pretextual. The fact that defendant at one point focused on lack of teamwork and poor transition to his engineering assignment and at another point emphasized plaintiff's moodiness and failure to take criticism is unimportant "when it all boils down to the same underlying problem--[plaintiff]'s inability to communicate." Even if plaintiff believed his comments about management were not disparaging, or that termination was an overreaction, he has not shown that managers did not believe he made the remarks and used the incident to terminate him based on his age. "[E]mployers may terminate competent employees (older or otherwise) because they do not like them or, as in this case, because the employee does not respect the employer's authority." Statements that other older workers felt ostracized, or that managers other than the decision-maker made discriminatory statements about older people does not defeat summary judgment.

After an acquisition and reorganization, plaintiff, a 61-year old 40-year veteran, lost his position as comptroller. Two younger individuals took on his functions. Plaintiff was willing to accept a demotion, but management did not consider him for an entry level slot. His "failure to transfer" claim did not appear in his EEOC charges, and fails on its merits because the person permitted to transfer was, at 53, not much younger than plaintiff. It is legitimate to view a candidate as over-qualified for a position. Absence of evidence of pretext dooms plaintiff's discriminatory termination claim. The younger candidate picked for a newly created position had been performing some of the functions involved already, and had equal accounting skills to plaintiff but greater computer facility.

In a public accommodations case, Court holds that punitive damages may not be awarded in private suits against public entities.

The ADA permits the EEOC regulation which authorizes an employer to defend a discharge decision on the ground that the worker's disability on the job would pose a direct threat to the worker's own health.

Just before surgery for an arthritis flare-up, plaintiff was directed to go on FMLA leave. While he was away, defendant discovered damage to his laptop computer and inappropriate communications with one of defendant's competitors. Court assumes that plaintiff's walking limitation constitutes a real or at least perceived disability. Whether he could perform his job--which required considerable walking and field trips--with accommodation is less certain, particularly in light of plaintiff's arguable failure to negotiate with defendant regarding such accommodation. Defendant did not actually terminate plaintiff when he went on leave and applied for FMLA benefits. Defendant can therefore assert his improper use of his laptop, discovered after he went on leave, as one of several legitimate non-discriminatory reasons for his discharge. There is no evidence defendant did not genuinely believe plaintiff was guilty of misusing the computer.

Plaintiff's diabetes substantially limits his ability to think and care for himself and has caused kidney damage, nerve damage, mood changes, and depression. It therefore qualifies as a disability within the meaning of ADA. Summary judgment was nevertheless proper because plaintiff did not demonstrate that his employer's reason for discharging him was a pretext: he harassed a co-worker after repeated warnings and provided assistance to that co-worker in an arbitration against defendant, disregarding his responsibility as a manager. Case is remanded for consideration of the limited issue of whether defendant failed to accommodate his disability during his employment.

Plaintiff, a union business agent, was placed on a three-day disciplinary suspension for poor work performance and then took an eight-week leave for clinical depression. During this leave, his supervisors discovered he had failed to process numerous employee grievances and terminated him. Plaintiff did not demonstrate that his condition limited his ability to work before his suspension and did not show that his intermittent, episodic condition constituted a disability. Nor did the union hold "exaggerated views" about the seriousness of his illness, so his "regarded as" claim also fails. His FMLA claim also fails because the union would have fired him for his failure to process grievances regardless of his having taken leave, as demonstrated by his supervisor's testimony (albeit not specifically addressed in the motion for summary judgment).

Plaintiff suffered from several disabilities, including a hearing loss, an eye disorder, obesity, sleep apnea, and an intestinal disorder that caused bleeding and required frequent bathroom visits. His suspicious supervisor banged on the bathroom door, demanded a letter from his doctor, and required him to remove a sleeping bag he used for naps during his lunch hour. She also exacerbated his hearing difficulties by placing a printer near his desk, refusing to replace the batteries in his headset, replacing his chair, and requiring him to administer eye drops at his desk. She refused his request for one- or two-day leaves for medical problems (though he did take longer leaves). She permitted women to take longer breaks and eat at their desks, and prohibited him from taking calls relating to his outside business, though a female employee took calls for her husband on one occasion. Plaintiff's eye trouble worsened and he experienced depression and anger. In despair after an EEOC intake officer told him it would be years before they could do anything for him, plaintiff drove to Joliet and used a sawed-off shotgun to rob a White Hen convenience store of $200. A psychiatrist testified that he suffered a "disassociative disorder" caused by his supervisor's discriminatory treatment. The jury found in his favor on sex and ADA claims and awarded $5 million, but the district court vacated the ADA verdict and reduced the award pursuant to the statutory caps. The evidence showed that most of the harassment related to plaintiff's multiple disabilities, not his sex, so once the district court dismissed his ADA claim, it should have ordered a new trial rather than entering judgment on the sex discrimination verdict. Because plaintiff was incarcerated after his termination, a front pay award was inappropriate. Further, defendant's conduct was not the proximate cause of plaintiff's conviction and incarceration.

The ability to read all day is not a major life activity, so condition that renders plaintiff unable to read for more than 50% of the time, was not disabling, and his employer was not required to accommodate him. District court properly granted defendant's motion for judgment as a matter of law.

Whether carpal tunnel syndrome constitutes a disability depends on whether it prevents or restricts performance of tasks of central importance to most people's lives, not merely interferes with manual tasks associated with plaintiff's assembly line job. ADA definition is intended to cover individuals with disabling impairments regardless of whether they have any connection with the workplace.

A request for reassignment that would conflict with seniority rules normally is not a reasonable accommodation to a worker's disability, but an employee may offer evidence of special circumstances–for example, the employer's practice of frequent changes or exceptions to the seniority policy–show that making an exception to the policy is reasonable. Employee bears the burden of proving "special circumstances."

Plaintiff's disability prevented her from performing repetitive motions with her right arm, thus precluding performance of some of the assembly-line jobs that defendant requires all employees to rotate through. An employer is not required to create a new job in order to accommodate an employee's disability. Plaintiff's statement that other employees were given a pass on some job assignments was not made on personal knowledge as required by Rule 56 (e). Defendant's practice of making light-duty assignments available on a temporary basis for workers recovering from injuries does not require that such assignments be made permanent.

After briefly paying a higher commission rate to its driver-salespeople, plaintiff beer distributor began adhering to the terms of the collective bargaining agreement and paying the (lower) contract rate. Despite the "zipper clause" in the agreement, the arbitrator sustained the union's grievance, observing that he was "giving effect to a long-standing practice or oral understanding" – i.e., that plaintiff had paid the higher rate during two previous contract terms, despite favorable language in those previous contracts. The contract barred the arbitrator from looking at past practice, however, so district court erred in enforcing the arbitral award. Easterbrook, J., dissents, urging that the arbitrator's misinterpretation of the contract does not permit the court to vacate his award.

Employee of a futures commission merchant with membership in the National Futures Association was bound by arbitration clause between his employer's customer and his employer.

An agreement between an employer and an employee to arbitrate employment-related disputes does not bar the EEOC from pursuing victim-specific judicial relief, such as back pay, reinstatement, and damages, in an ADA enforcement action. Because the EEOC is not a party to the contract and has not agreed to arbitrate its claims, the FAA's pro-arbitration policy goals do not require the agency to relinquish its statutory authority to pursue victim-specific relief.

Were camera workers employed by Balmoral covered by its collective bargaining agreement and therefore eligible to demand arbitration? Yes. Although camera workers do not perform any of the enumerated tasks set forth in the agreement, they were performing work which "by custom has been performed by members of IBEW," as determined by IBEW's president, to whom the agreement gives unfettered discretion.

Arbitrator's interpretation of the collective bargaining agreement–that employer may require a drug test only if there is reasonable cause to believe the employee is under the influence at that very moment–is narrow, literalistic, and quite possibly wrong, but was properly upheld by the court on review.

(Opinion following rehearing; earlier opinion at 285 F.3d 623 is vacated):

As defendant's counsel conceded at oral argument, a provision barring plaintiff's ability to recover attorney's fees if successful renders an agreement to arbitrate unenforceable in a Title VII action.

Plaintiff sold his travel business and agreed to work for defendant purchaser. An arbitration clause governing his employment agreement did not require arbitration of a dispute arising out of defendant's alleged failure to make payments pursuant to the business purchase agreement, which did not incorporate the employment agreement's arbitration clause by reference.

Invoking the Railway Labor Act, Seventh Circuit concludes that former American Airlines pilots who became disqualified at age 60 to pilot commercial planes must arbitrate their claims that the collective bargaining agreement gives them bumping rights and that defendant's refusal to permit them to downgrade to flight officer job is unlawful age discrimination. Their federal lawsuit will, in the meantime, be stayed.

A year after plaintiff was employed, she was notified of the employer's arbitration program via a "payroll stuffer" notice in her paycheck envelope. The arbitration brochure specifically guaranteed the workers' "substantive legal rights," assured the same remedies as available in court, bound the employer as well as the employee, and identified "remaining employed" for the next two months as consideration for the agreement. Plaintiff did not recall receiving this notice, but the evidence indicated it was distributed to all employees, and defendant reminded employees of the arbitration agreement in its internal monthly magazine. After plaintiff complained about unequal treatment as compared to male co-workers, her supervisor removed her from her assigned post, reduced her pay, and refused her request for a scheduling accommodation. District court properly granted defendant's motion to stay the resulting retaliation case pending arbitration. Continued employment can constitute consideration and the fact that plaintiff did not sign the agreement did not render it unenforceable.

Union-appointed arbitrator signed arbitral award after its issuance by the neutral, who resigned from the roster of arbitrators as the result of an unrelated criminal charge. Despite the employer-appointed arbitrator's refusal to sign the award, it is affirmed.

In § 1983 action, where defendant makes a Rule 68 offer of judgment more favorable than the judgment plaintiff ultimately receives, plaintiff is barred from recovery of his own post-offer fees and is entitled to recover post-offer costs, but not fees, because defendant is not a "prevailing party" merely because plaintiff's recovery is less than the offer.

The "interim presumption," applicable in this case because the original claim was filed before 1980, provides a rebuttable presumption of total disability due to pneumoconiosis. The ALJ properly invoked the presumption and properly concluded it was not rebutted, explaining his reliance on physicians with the most impressive credentials and six positive x-ray readings out of nine. Where the evidence did not establish a date of onset, however, the ALJ should have set the onset date by default as of the date plaintiff's decedent filed his claim, not the date of his retirement, and then suspended benefits during the brief period that he returned to work. Because plaintiff's attorney has no regular fee-paying clients, court properly considered previous fee awards and the affidavit of a bar official in awarding $200 per hour.

One negative CT scan read by a non-qualified medical expert does not defeat the presumption that employee, an 11-year employee at plaintiff's mine, was disabled. Nor did plaintiff establish that its employee was a heavy smoker.

ALJ properly determined that plaintiff offered insufficient proof that pneumoconiosis caused the respiratory problems that led to the miner's death. He had many substantial health problems that were not related to asthma, breathing, or pneumoconiosis. The employer's doctors had superior qualifications and their opinions were more specific and well supported.

Despite several previous proceedings, ALJ erred in refusing to entertain employer's petition for modification filed two years after miner's death.

On remand, plaintiff met his burden of showing that 1984 blood gas tests were valid, where physical symptoms (shortness of breath, clubbing of fingers and toes, and excessive red blood cells) confirmed the result. Defendant's experts did not explain why 33 years of exposure to coal dust was not a factor in plaintiff's lung disease, and therefore did not rebut the presumption of total disability due to pneumoconiosis under 20 C.F.R. § 727.203.

Where Department of Labor had concluded that mine worker had suffered from pneumoconiosis during his lifetime, the Department properly concluded his widow was entitled to survivor's benefits after his death from colon cancer. The employer was entitled to seek consideration of autopsy evidence in an effort to show the earlier determination was not correct, but there was no autopsy in this case. Nor did the employer argue that the widow's benefits should be limited to the months by which pneumoconiosis hastened the effects of colon cancer.

Although the parties dispute how defendant found out about plaintiff's DUI arrest, there is no dispute that his loss of a driver's license due to drunk driving was the reason he was discharged from a position requiring driving. We merge the analysis of pretext with the analysis of the prima facie case only where the employer's legitimate expectations are themselves a sham or pretextual, which is not shown here where plaintiff could not legally drive to client locations.

Judge Posner identifies three types of "materially adverse employment actions": (1) cases in which the employee's financial terms of employment are diminished (for example, termination); (2) cases in which a nominally lateral transfer reduces the employee's future career prospects, or his job is changed in a way that hurts his career; and (3) cases in which the conditions of employment are changed in a way that creates an objective hardship (for example, the employee whose desk is moved into a closet); this last condition includes constructive discharge and harassment. (He leaves open the possibility that an employee claiming retaliation may be able to prevail even if he has not suffered such a materially adverse employment action.) Where, as in this race discrimination case, the employee's preference for one position over another is purely subjective (plaintiff preferred the investigative work to which he was temporarily assigned), the job transfer back to his auditing job is not actionable, despite that the investigative assignment had perks including a company car and being excused from signing in and out. His subsequent discharge might have supported a claim, but the facts demonstrate that he was not meeting reasonable deadlines. The fact that the same individual awarded plaintiff the desirable transfer and later terminated him does not itself defeat his claim. The "common actor presumption" is really only a factor for the trier of fact to consider. Plaintiff was transferred out of investigations because he did not have proper techniques for interviewing witnesses and did not improve in response to criticism, not because of his German ancestry.

To establish a prima facie case in a "mini-RIF" (where an employee is discharged, not replaced, and her duties absorbed by remaining worker), plaintiff must show that her duties were taken on by employees outside the protected class. Here, defendant offered, as its legitimate, non-discriminatory reason, a reorganization that closed several facilities, including plaintiff's, and transferred some workers to other locations. Inaccurate statements about how the reorganization would affect plaintiff did not establish pretext because they were not made by the decision-makers. In any event, those statements were not probative of age or gender discrimination. A younger worker was in fact assigned some of plaintiff's duties after her discharge, but he did not directly replace her and in fact had performed some of those duties on occasion earlier. Perhaps plaintiff could have performed the younger person's job, but the court does not sit as a super personnel department to review an employer's business decisions.

In a tenure denial case, university president's reference to the problem of "continued unfairness in the treatment of women in the medical school" and statement that he had "made inquiries of the dean" concerning plaintiff's tenure denial is not direct evidence of discrimination because direct evidence proves the fact in question without reliance on inference or presumption. President's comments do not by themselves establish discriminatory intent. Plaintiff was not meeting university's legitimate requirements for research and publication. Male employees granted tenured with similar publication records years earlier were not similarly situated because they were examined under different standards.

Of eight challenged promotions to quality control position, the jury found plaintiff was denied a single one on the basis of his race. After trial, the focus is not on whether pretext is proven, but whether the evidence supports the finding that defendant intentionally discriminated because of race. "Prima facie" case plus proof pretext may, however, be sufficient to support jury's verdict. Interview notes stating that successful white candidate, Harris, had prior experience is not inconsistent with defendant's explanation at trial that Harris was "more qualified." As an outside candidate, Harris was not subject to the rules requiring that internal candidates must submit a resume rather than a written application. Subjective reasons for rejecting a candidate (i.e., "shows no real interest," "poor answers to questions") are not per se pretextual. Absence of any black hires during a two-year period is anecdotal, not probative, without more information concerning the number of available positions, number and race of candidates, and their qualifications. Plaintiff had college degree in education, but Harris had taken more relevant courses and had experience in quality control. When plaintiff's case consists solely of a comparison of the competing candidates' qualifications, disparities sufficient to support a verdict for plaintiff must be so apparent as to "slap you in the face"–that is, demonstrate that no reasonable person could have selected the successful candidate over the plaintiff. Verdict for plaintiff reversed.

Plaintiff, hired at age 48 as a claims support representative, was promoted several years later to claims representative despite declining performance. After chronic job performance problems continued, plaintiff's manager imposed a "provisional rating," requiring immediate improvement and compliance with company standards for claims adjustment. Five weeks later, her work had not improved and she was terminated and replaced with a 24-year-old man. District court erred in proceeding directly to pretext analysis where the evidence of her deteriorating job performance was overwhelming. She does not challenge the veracity of nine critical written evaluations nor rebut the evidence that several managers criticized her performance and participated in the decision-making process. The four employees she compares herself to were either not similarly situated (because not the subject of extensive criticism) or were themselves discharged for similar reasons.

Jury instructions improperly required employment discrimination plaintiffs to prove "damages" (rather than merely showing injury or harm), and improperly required jury to determine whether plaintiff had proven a prima facie case, normally a question of law for the court. The jury should only have been asked to decide whether plaintiffs suffered retaliation because of protected activity, rather than to decide whether they had suffered an "adverse action." Jury verdict for IDOT upheld, however, where plaintiff did not prove that he suffered harassment because the only female worker in his unit received preferential treatment due to a personal relationship with the supervisor; even if proven, this would not violate Title VII. Further, plaintiffs were not prejudiced by instruction that limited the definition of adverse action to employment-related harms.

Evidence showed that different supervisors applied the written attendance policy in different ways; thus, the district court did not err in refusing to consider disciplinary records of workers under different supervisors.

Illinois Department of Transportation was entitled to summary judgment on plaintiff's sex and race discrimination claim; plaintiff, the only black and the only female employed in highway-maintenance, sought clerical and blacksmith work that had been assigned to other workers since before she was hired. Her pay and career advancement prospects were unaffected. Disparate treatment alone is not enough to establish a prima facie case. Plaintiff did not suffer a materially adverse employment action; she did not show that the responsibilities that she sought were "building blocks" for a promotion. Nor did she offer evidence in support of her argument that the collective bargaining agreement required these job responsibilities be rotated. Further, the fact that other employees were already performing those duties is a legitimate, non-discriminatory reason for defendant's action.

To prove a constructive discharge based on harassment, plaintiff must present evidence even more egregious than the high standard for hostile environment. Constructive discharge may also be proven, however, by evidence that defendant communicated its intent to fire plaintiff. Plaintiff's department manager, a Roman Catholic, disapproved of the religious calendar and desk clock in plaintiff's office, and believed plaintiff recruited employees from her Baptist church. Two of plaintiff's supervisors were themselves discharged for refusing to fire plaintiff, a new one called a small mistake "the last straw," and when plaintiff returned from vacation, she found her desk packed up and her personal belongings in boxes. This evidence supported plaintiff's claim of constructive discharge based on religion. Summary judgment for defendant reversed.

Title VII plaintiff may not recover for "discrete discriminatory acts" (for example, termination, failure to promote, denial of transfer, or refusal to hire) that occurred outside the relevant EEOC filing deadlines. Where a hostile environment is shown, however, provided that an act (whether or not it is the last act) contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered for purposes of determining liability. If an act on day 401 is related to a hostile environment on days 1-100, all incidents are part of the same claim. Evidence that managers made racial jokes, performed racially derogatory acts, made negative comments about blacks, and used racial epithets, supports plaintiff's claim even if the incidents occurred outside the 300 day filing period. The court may nevertheless apply equitable tolling or laches doctrines, but should do so sparingly.

Plaintiff brought action against a state university under 42 U.S.C. § 1983 and state tort law. Even though there is no valid federal claim–§ 1983 action cannot be brought against a state–state law claims should not be dismissed as barred by the Eleventh Amendment. By removing the case to federal court, the state waived its Eleventh Amendment immunity.

Extension of Title VII of the 1964 Civil Rights Act was valid exercise of congressional power under § 5 of the 14th Amendment. State University therefore does not enjoy Eleventh Amendment immunity from suits alleging disparate treatment, and district court properly denied University's motion to dismiss professor's claim that she was terminated due to her sex and national origin.

Sale of business with all employees being rehired on same terms by purchaser does not constitute a "termination" requiring payment of severance benefits. In any case, the language plaintiffs rely on ("The company will develop and implement an appropriate separation program.") is too vague to support a claim. Employer's past practice of paying severance pay is not sufficient to create a contract.

Language providing for payment of benefits when necessary "in the reasonable judgment" of the plan administrator does not rebut the presumption of plenary review. Plaintiff's child required monitoring of oxygen in his bloodstream and monitoring of his breathing throughout the day. He also suffered intermittent seizures, as many as 20 per day. Plan's decision confining skilled nursing services to two hours a day was patently unreasonable. Summary judgment for plaintiff affirmed. Attorney's fees and prejudgment interest were also properly awarded.

Because any plaintiff with a colorable claim for benefits has standing to bring an action under 29 U.S.C. § 1132(a)(1)(B), plaintiff here, who had been promised health insurance coverage and had communicated with his employer about privacy issues relating to the enrollment form had standing, though he never completed the form. But his estoppel claim fails because he was not told he did not need to complete the enrollment form and cannot show that he reasonably relied on any alleged misrepresentation. The plan documents clearly and unambiguously require enrollment. Because the plan is unambiguous, any oral misrepresentations would not support a claim. Delay in sending the enrollment form and failure to advise plaintiff that he must enroll is not a breach of fiduciary duty. Finally, his § 1132(c) claim fails because he made his request for documents to his employer, not to the insurer that acted as administrator of the health care plan.

Illinois's "substantial compliance" doctrine (for determining whether an insured has changed his designated beneficiary) is preempted by ERISA. Under the federal common law of substantial compliance, insured designated his children as beneficiaries of his life insurance, despite mistakenly checking the wrong box in the beneficiary designation form.

Where a patient's physician deems treatment medically necessary but HMO denies coverage, an Illinois law requires the HMO to submit the claim denial for review by an independent physician. Independent doctor in this case concluded that the more sophisticated surgery recommended by her primary care physician was necessary. Supreme Court affirms Seventh Circuit's decision granting summary judgment to plaintiff in her challenge to denial of coverage for this surgery. The state statute is not preempted by ERISA.

Plan language that requires participant to submit "satisfactory proof total disability" does not reserve discretionary authority, so denial of benefits is reviewable de novo. Where plaintiff's compensation included a percentage of profits, district court correctly concluded those payments constituted bonus, not commission, and were properly averaged over 36 months for purposes of calculating her disability benefits award.

Disabled by pulmonary disease, plaintiff sued for disability discrimination. His employer defended on grounds that plaintiff was unable to work but refused to pay disability benefits because the plan covered only those employees found disabled by the Social Security Administration. When plaintiff's Social Security claim was approved three years after his termination, defendant again refused his disability claim because plaintiff was no longer an employee at that time, but acknowledged he was entitled to deferred vested retirement benefits at age 60. Defendant thus conceded that an individual can be a plan "participant" even if no longer employed, and will not be permitted to rely on a different definition of "participant" for purposes of disability. Summary judgment for defendant reversed.

For purposes of venue under the ERISA statute, a defendant "may be found" in a district with which it has minimum contacts under the International Shoe doctrine. The mere presence in a district of two participants in a retirement plan covering 2,740 retirees does not constitute sufficient contact.

Earlier decision in this case concluded only that Fund's demand for withdrawal liability payments was premature. That decision did not address defendant's ultimate liability, and defendant's failure to make payments under the revised demand is a new wrong for which the district court properly awarded a remedy.

District court's decision that defendant was operating a trade or business is reviewed under a "clearly erroneous" standard. The court's finding in favor of plaintiff on this issue was supported by evidence that defendant recovered "management fees," which were income or profit from a business conducted with continuity and regularity.

Where an employee has signed a collective bargaining agreement in which it promised to contribute to a pension fund, fund may enforce that agreement according to its terms. The defense of "fraud in the execution" (i.e., party does not understand the agreement due to the other's fraud) is available under § 515, but defendant here did not establish that defense because, although the union representative misrepresented the nature of the contract, defendant had access to the one-page form agreement and was aware that the effect of such an agreement ordinarily is to subject all of the employer's operations to coverage under the agreement. Thus, defendant's ignorance of the provisions was not excusable. Records do permit a precise determination of the amount owed, so the case will be remanded for that determination.

Defendant employer did not give notice of intent to terminate the agreement with plaintiff funds and therefore became bound to two successor agreements. Defendant's request for admission was untimely whether viewed as a discovery device (as apparently contemplated by Rule 29) or as information needed for trial (as in Rule 36). Signature on earlier agreement is sufficient to express defendant's intent to be bound by subsequent agreements; here, defendant also continued to submit contributions and reports for almost three years after it claims it was no longer obliged to do so. Defendant was not entitled to additional time to respond to turnover order merely because an officer from another bank signed response to citation; defendant could easily have learned that the two banks are the same entity. Nor did defendant have the right to demand arbitration of the funds' claim.

Local union head agreed to make the results of the first audit "go away" and employer successfully argued that union was barred by laches from seeking to enforce subsequent audits. ERISA does not contain a statute of limitations for actions to recover unpaid contributions, so courts in Illinois often borrow the ten-year state law limitation for actions on written contracts. Laches–or, more accurately in this case, equitable estoppel–might be available as a defense to a union's enforcement action, but employer could not reasonably have relied on the union representatives one-time oral statement to support a belief that it would never be named in a collection suit.

In litigation between two former business partners, court properly concluded one partner's unilateral amendment to the pension plan and personal loan were invalid because neither were approved by the board of directors. Court also acted within its discretion in declining to award statutory penalty for a seven-day delay in furnishing information to employees as required by 29 U.S.C. § 1024(b)(4). Although the business was not operating, and no contributions were being made during the pending litigation, employees did not show that the plan had terminated by its terms.

Plaintiff insurer sought enforcement of a plan provision giving it the right to reimbursement from any successful third-party action. Court concludes that plaintiff is seeking legal, not equitable relief, and that the suit is therefore not authorized by § 502(a)(3) of ERISA.

Two years after plaintiff's early retirement, plan was amended to define employment that would disqualify retirees from benefits as including not just construction labor, but also supervisory work. This amendment decreased accrued benefits and therefore violated the "anti-cutback rule." 29 U.S.C. § 1054(g)(2). Judgment on pleadings for Fund is reversed.

Class actions for ERISA violations by plan administrators were, in effect, actions for benefits due under the terms of a plan and were, therefore, excluded from coverage under the "Executive Protection Policy" provided by defendants.

ERISA did not preempt group insurer's common law fraud action against defendant employee who concealed his divorce in order to maintain health coverage for his former wife. Plaintiff's action seeks to recoup monies improperly expended and therefore is an attempt to protect financial integrity of the insurance fund. The ERISA plan is only the context in which defendant's fraudulent conduct occurred.

One month before the end of her nine-month employment contract with the University of Wisconsin, plaintiff was served with notice of termination for having initiated plans to form a business in competition with a University program. She was paid to the end of her contract, however. Defendants' (unidentified) statements are not direct evidence – that is, evidence that establishes discrimination "without reliance upon inference or presumption" – and were not contemporaneous with the challenged employment action. In any event, males involved in the competing business were also disciplined, and the other circumstances of which plaintiff complains (denial of certain employment and travel benefits) are not actionable. Co-worker's tenure with the University and status as former program director constitute factors other than sex, defeating her Equal Pay Act claim.

To justify race discrimination, even of the "affirmative action" sort, a public agency must prove there was a compelling need, and that the program went no further than necessary. But that standard does not alter the deferential standard for review of a jury's findings of fact. Those facts show that discrimination against blacks in the 1960s resulted in a deficit of blacks in senior positions in the 1980s. The City's promotion out-of-rank of a very small number of blacks to sergeant and lieutenant positions did not violate equal protection. The case for promotion of women out of rank is even stronger, because they were formally barred from many positions with the 1970s. The City is not barred by judicial estoppel due to the court's reversal of a verdict for blacks in an earlier lawsuit. There was no history of discrimination against Hispanics, but the City demonstrated a need to increase the number of Hispanic lieutenants, and the judgment against the City on this single promotion will be reversed.

Plaintiff's failure to adhere to local rules' requirements for disputing facts results in the court's acceptance of defendant's version of events. Plaintiff, a science teacher, had difficulty communicating with students and parents. On several occasions she engaged in inappropriate discipline or publicly chastised students. When a principal tried to meet with her to discuss a poor performance evaluation, she wrote a rambling memo characterizing the school board's treatment of her as "something akin to a rape." Plaintiff's Title VII claim fails because he has not shown she was performing satisfactorily at he time of her termination. Her hostile environment claim fails because the principal took prompt action against the students allegedly harassing plaintiff and because she refused to meet with the principal to discuss the remedial plan developed for her, of which she now complains. Her equal protection claim fails because she offered no evidence of a Caucasian teacher whom the administration supported differently in his or her discipline of students. She was properly reprimanded for poor classroom management after an incident in which she accused the wrong student of having thrown an apple core at her.

Despite the fact that their pay was docked for absences, plaintiffs were exempt from FLSA overtime and vacation pay guaranties because of "public accountability" regulations. City of Indianapolis "ghost payrolling" ordinance, code of ethics, and work week policies support this conclusion. The fact that the City did not make discretionary overtime payments to other supervisory employees does not defeat this conclusion. One plaintiff's deposition testimony that most of his work was administrative defeats assertions to the contrary in his affidavit. Being burdened by extra work due to layoffs of support staff does not transform an executive employee into a non-exempt worker.

FLSA requires city to pay firefighters for overtime work devoted to training because firefighters were not working a "fluctuating work week." But Wisconsin law does not prohibit city from recouping training costs for employee who leaves before conclusion of three-year training cycle.

Plaintiff, an asthmatic, was denied a transfer to another department within the defendant bakery where she would be exposed to flour dust, even after her physician gave an "O.K." She filed a charge of discrimination (race, disability, and sex) in October. Two months later, she was hospitalized briefly. When she failed to return to work as scheduled and failed to call for three consecutive days, her employer terminated her pursuant to work rules. District court properly granted summary judgment on her FMLA claim because her discharge for violation of the attendance policy does not violate FMLA. Her retaliation claim was also appropriately dismissed on summary judgment because suspicious timing alone is insufficient to support a claim of retaliation.

Employer granted 30 weeks of medical leave under a generous leave policy, but refused plaintiff's request for additional leave or permission to work part time. She challenged her discharge under a Labor Department regulation which requires that an employer give an employee notice that she is on FMLA leave before the time may count against the employer's FMLA obligation. Supreme Court affirms summary judgment for employer, holding that the regulation was contrary to the statute and beyond the authority of the Secretary of Labor.

Dissatisfied with the union's decision to distribute proceeds of a court settlement over a very large group of members, plaintiffs brought a § 301 action. District court's decision that plaintiffs' claims were barred for failure to exhaust union appeal procedures survives deferential review, despite showing that the union's general counsel stated that the union would fight plaintiffs "to the end," and that one of the decision-makers would also have heard the appeal. Nor does the fact that a second-level appeal might take years excuse plaintiffs' failure to initiate the first level.

An elected union leader has the right to choose a staff whose views are compatible with his own, so the union president did not violate LMRDA when he discharged three union employees because they refused to support his re-election. Section 609 prohibits discipline or retaliation that affects a union member's rights or status, but here plaintiffs' loss of union membership was incidental to their termination.

Oil and gas exploration barge was an "uninspected vessel" for purposes of Coast Guard regulations. Those regulations do not preempt OSHA's authority to cite vessel operator for safety violations where an explosion resulted in the deaths of several workers.

Petitioner, a general contractor, brought a § 303 action against union, charging that its lobbying, litigation, and other concerted activities to delay a construction project violated federal law. The Board concluded this lawsuit was unmeritorious because all the claims were dismissed or withdrawn and that it was filed to retaliate against the unions for engaging in protected activity, and ordered petitioner to cease and desist from filing such suits. Reversing, court concludes that Section 158(a)(1) does not establish that any unsuccessful lawsuit, even one that was reasonably based, violates federal labor law if it is filed for a retaliatory purpose.

Firing or refusing to hire a union "salt" is an unfair labor practice, even where, as here, the "salt" announces he is a union organizer immediately upon hiring (thus suggesting the purpose is not to organize the workforce but to precipitate an unfair labor practice). The "salt"'s lies about reasons for leaving his previous employment do not bar recovery for the unfair labor practice committed when the employer sent him home. The employee was therefore entitled to a few hours of back pay, but not to reinstatement; his driving record (investigated after his hire) disqualified him from the position. Fact that the NLRB's complaint charged employee termination, rather than merely sending the worker home, also made no difference. Worker's lies in his application are not really after-acquired evidence a la McKennon, but the principles set forth there support the conclusion that the worker was properly awarded back pay for the four hours between when he was fired and when the employer learned through its own investigation that he was unqualified.

Reversing the D.C. Circuit, Court holds that federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986 (IRCA), forecloses the NLRB from awarding backpay to an undocumented alien who had never been legally authorized to work in the United States.

Defendant violated the NLRA by engaging in oral and written intimidation of employees and by terminating seven of the twelve employees who had signed the union organizing petition just before or just after the union election. The circumstances and suspicious timing of the discharges cast doubt on the explanation offered by defendant for the discharges. Defendant did not meet its burden of showing it would have taken the same action in the absence of protected activity.

One supervisor's questioning of a subordinate concerning attendance at a union meeting, without subsequent repercussions, did not violate the Act. Another supervisor stated she believed "we would all be looking for jobs here" but in context, the statement appears to be an expression of her personal opinion. Finally, management disciplined a union organizer for violating the "no-solicitation policy," a policy defendant had never before enforced, only after receiving a complaint from the employee who had been contacted by the union organizer. This final incident alone violated § 8(a)(1) because the circumstances indicate discriminatory enforcement of a valid "no solicitation" rule. Board enforcement order affirmed.

Defendant car dealer's three senior managers threatened to fire union organizers and withdrew commitment to improve the firm's employee benefit plan in light of union activity. After management refused to recognize the union, employees walked off the job. Defendant thereafter engaged in unfair labor practices, including threats to fire picketers and terminations even afer an unconditional offer to return to work. Finding violations of §§ 8(a)(1), (3), and (5), the Board ordered defendant to initiate bargaining with the Teamsters. Court affirms, noting that the Board need not provide additional detail or extensive discussion concerning other alternative remedies, and has no duty to inquire into employee turnover where the issue is not raised by the employer.

Union offer to reduce initiation fees for all defendant's employees removed an artificial barrier to joining and was not improper. But union offer of mechanics' certification to under-qualified workers interfered with "laboratory conditions" for the election, and NLRB bargaining order is vacated.

Employer seized on a scrivener's error in terminating a collective bargaining agreement two years before the intended expiration date. Substantial evidence supports the ALJ's finding that the agreement should be reformed to reflect the parties' intended three-year term and that early termination was an unfair labor practice.

Plaintiff was subjected to national origin harassment for several years. His supervisor and others used racial epithets; there was racist graffiti in the washroom; plaintiff was denied training; and his tires were slashed. He complained directly to his manager but defendant performed no investigation of any kind until after plaintiff filed a charge, then concluded it was unfounded. Plaintiff failed to prove he suffered adverse employment action; evidence of lack of training was insufficient. But evidence of direct and highly offensive racial epithets, including derogatory comments about plaintiff himself, by name, were sufficient to establish a hostile environment because they were both pervasive and severe. Decision for defendant after a bench trial is vacated.

Merely directing plaintiff not to talk to anyone other than management about her sexual harassment complaint does not constitute equitable estoppel. Plaintiff's assertion in her affidavit that her manager threatened to terminate her if she spoke about the incident was not mentioned in her deposition and will be disregarded. Even a threat to fire her would not constitute equitable estoppel – it might be "anticipatory retaliation," which would support an additional claim.

EEOC has standing to represent a class of victims of race discrimination without regard to the requirements of F.R.C.P. 23.

Where plaintiff fails to serve defendant within 120 days due to excusable neglect, court may but is not required to allow additional time and does not abuse discretion by dismissing the complaint.

Plaintiff in this eight-year-old class action, a white male, had requested an application for employment as a police officer but was refused on the basis the department was not accepting applications from white males. He found another job and has no continuing stake, nor can he represent a class that includes white males who did take the entrance exam but were passed over in favor of women and minorities by the defendant's practice of changing scores on the exams. District court properly decertified the class and dismissed the case because the named plaintiff's claim had become moot. But the court should have ordered class counsel to provide notice to class members who may not otherwise know that the statue of limitations will resume running on their claim.

EEOC regulation permits a complainant whose charge is otherwise timely to verify that charge after the filing period has expired. This regulation is a valid interpretation of Title VII, and the lower court erred in dismissing a complaint where the underlying charge was submitted by letter in time, but not signed under oath until after the expiration of 300.

EEOC issued subpoena to a law partnership on theory that certain demoted partners were the victims of discrimination. Defendant resisted, arguing that the partners are "employers." Where the firm is run by a small, unelected executive committee, the partners have no power other than those that could be exercised by employees, and the partners themselves have liability limited to their capital contributions, they may not be employers. The EEOC's subpoena will be enforced with respect to coverage issues, including how evenly profits are distributed across the firm, which may bear on the issue of whether the firm is the employer of at least some of the partners. The district court erred, however, in ordering full compliance with production of materials that go to the merits of their age discrimination claim.

Plaintiff, an American flight attendant living in France, claimed United's failure to make contributions to the French Social Security System on behalf of U.S. Citizens constitutes national original discrimination. These allegations do state a claim (though a claim of citizenship discrimination clearly would not). International treaty may form a basis for United's defense, but does not excuse compliance with EEOC's administrative subpoena. Even under an appropriately broad standard of relevance, EEOC's requests for information concerning "each and every benefit provided to all of United's French employees," and concerning all United employees living abroad who have taken medical leave, are overbroad. The suggestion that the information may help EEOC to assess sex discrimination claims is unhelpful in this national origin case. On remand, district court should assess EEOC's requests individually, but should first determine whether the treaty will be a defense to plaintiff's claim.

The Illinois Wage Payment and Collection Act is properly interpreted in federal court as providing that the 15-day penalty provision begins to run not as of the date that judgment is entered, but on the date it becomes final for purposes of execution (10 days later).

Settlement agreement filed with district court is presumptively open to the public.

Under the work-sharing agreement between EEOC and the Wisconsin state agency, the agency waived its exclusive jurisdiction over plaintiff's state-filed claim at the time it was filed, three days before the 300-day period expired. Plaintiff's race discrimination claim was therefore timely. Where defendant failed to respond to written discovery until after the discovery close date had passed and then refused to produce witnesses for their depositions, district court did not abuse discretion by barring defendant from calling the deponents as witnesses at trial. Defendant's reliance on its own delay to justify its refusal to produce witnesses for depositions was "anything but good faith."

In a lawsuit brought under 42 U.S.C. § 1981 alleging race discrimination in termination of employment and maintenance of a racially hostile work environment (that is, claims of discrimination based on actions occurring after the employment relationship is formed), the statute of limitations remains the most analogous state statute (here, Illinois's two-year statute for personal injuries), not the four-year "catch-all" provision set forth in 28 U.S.C. §1658.

Illinois appellate court decision, which affirmed the Police Board's decision denying plaintiff's claim for disability benefits, bars plaintiff's federal claim because substantive or procedural due process claims could have been brought in the state court review proceeding. Naming of additional individual board members as defendants does not evade the res judicata bar because the individual defendants are in privity with the Board, the defendant in the earlier state suit.

Plaintiff, an investigator for the Wisconsin public defender, was given correct information concerning the Wisconsin Personnel Commission's filing deadlines, and did not seek out information concerning the time limitations for filing her Title VII charge of retaliatory discharge. These circumstances do not amount to equitable tolling, a doctrine which permits a plaintiff to avoid the limitations bar if, despite all diligence, she is unable to obtain vital information bearing on the existence of her claims. Her second claim, challenging the removal of her name from the list of authorized investigators, does not allege an independent harm. Summary judgment in favor of defendant affirmed.

District court properly denied plaintiff's eleventh-hour motion to exclude documents that defendant city had improperly withheld from plaintiff's inspection pursuant to the Illinois Records Act; federal rules govern the admissibility of evidence. Court also properly refused "adverse inference" instruction because there was no showing that documents were destroyed in bad faith. Jury verdict for city on national origin discrimination claim was properly upheld.

Even counting employees of gym and jointly-owned spa (really a house of prostitution), records do not establish that defendant employed 15 or more employees during the relevant time frame when, not surprisingly, the spa did not maintain payroll records. Plaintiff's affidavit on this issue conflicts with his deposition testimony and therefore must be disregarded. Summary judgment affirmed.

An employment discrimination complaint need not contain specific facts establishing a prima facie case under the McDonnell Douglas framework, but instead must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2). The requirements for establishing a prima facie case do not apply to pleading.

Plaintiff, a doctor employed by a service that provided health care to Illinois prisons, lost her job after a report that she had given 7-Up to a prison inmate, a violation of DOC policy. Under the five-factor test, plaintiff was not a DOC employee. Some of the factors support her claim but the most important one–control over her work performance–confirms that the health services contractor, not DOC, supervised "all clinical aspects of the health care program." Nor was she a "loaned employee." Accordingly, her due process claim of entitlement to a "name-clearing" hearing was properly dismissed.

On September 30, 1996, Congress amended ADEA to retroactively lift the prohibition of age limitations for firefighters. Plaintiff, who applied before September 30, 1996, but was not placed on the eligibility list until November, has no protectable property interest in prospective employment as a firefighter; he aged out of eligibility before receiving a conditional offer of employment from the Muncie Fire Department. A letter stating that Muncie would "review" plaintiff's application does not support his due process claim.

State administrative body concluded plaintiff should have been subject only to suspension, not demotion, for disciplinary infractions. When defendant failed to rescind the demotion, he filed suit, but lost his state law claims due to a procedural violation. Because he had not been afforded a hearing on all of the charges against him (including the more serious charges), plaintiff was arguably denied due process. But his case involved demotion, not termination; his right to pre-deprivation hearing with respect to demotion was not clearly established, so defendants enjoy qualified immunity. Although plaintiff seeks prospective relief–reinstatement to his previous position–defendant's conduct cannot fairly be characterized as "ongoing," so the Ex Parte Young exception to Eleventh Amendment immunity is not available.

Plaintiff was transferred from his police assignment and denied a scheduled vacation immediately after he was contacted by a former arrestee and given information which prompted him to initiate an investigation of drug trafficking by the relative of a close personal friend of the Police Chief. Police protection and public safety are matters of public concern, and plaintiff's activities clearly did not advance his personal, private interests, nor did they constitute routine discharge of assigned functions. Plaintiff's right to be free of retaliation for exercise of his First Amendment rights has been recognized for many years. Motion to dismiss based on qualified immunity was properly denied.

Plaintiff was appointed interim executive director of the housing authority, but he was discharged from that position and from his permanent position as director of technical services when he challenged the authority's chairman by complaining to other board members about him. Because he had a policy-level position, his discharge for criticizing the elected official does not violate the First Amendment. His due process claim also fails because (a) he had a hearing and (b) he had no property interest in his at-will employment with the housing authority. The employment handbook specifically disavows any such rights, and the fact that the housing authority has not fired employees in the past without good cause makes no difference.

After an article critical of the police chief's restrictive investigative policy appeared in the press, plaintiffs, the suspected source for the story and origin of complaints through the union president to the Police Chief, were involuntarily transferred from the Technical Enforcement Unit. Their application for reassignment to that unit were repeatedly ignored. Speech about the way police investigations are to be conducted is on a matter of public concern; indeed, defendants did not argue the contrary, nor did they suggest that plaintiff's complaints about the matter affected morale. The fact that plaintiffs also had personal motives for speaking out does not defeat their claim. A public employer may properly take action on the basis of the "potential disruptiveness" of an employee's speech, but defendants did not testify that they took action for this reason and therefore cannot rely on it on appeal from a jury verdict. The law concerning retaliation for speech on matters of public concern has been well established for years, so qualified immunity fails.

Principal planned to eliminate plaintiff's security position for lack of funding months before plaintiff's allegedly protected speech. The fact the decision was announced one month after the contested statement does not establish causation. Summary judgment for defendant affirmed.

Plaintiff attached to his complaint his job description as Chief ALJ, the position from which he was allegedly demoted as a result of his political activities. The district court therefore properly considered the contents of that document in determining that plaintiff "pleaded himself out of court"; his position involved policymaking because it included overseeing subordinates, implementing policy goals, and providing legal advice. Because plaintiff had no "legitimate claim of entitlement" to the position, he had no property interest in it and his due process claim fails.

Plaintiff, a high school teacher and coach, wrote letters to the editor critical of school administration. After a consultant determined that the department chaired by plaintiff did not meet qualifications, the principal directed plaintiff to provide written lesson plans and a weekly progress chart. Plaintiff repeatedly refused, and, after a hearing, the School Board voted to terminate him. Plaintiff's First Amendment claim fails because Board's reason for termination–insubordination and neglect of duty–were not pretext. Principal required other teachers, whose departments were also out of compliance, also to furnish lesson plans. The fact that another teacher was not required to maintain lesson plan books also does not establish pretext. Plaintiff's due process claim fails because the fact that School Board members he criticized participated in his termination hearing does not establish they acted with actual or potential bias.

Plaintiff was terminated for insubordination and quarreling after an altercation with a railroad security officer. He himself injected race into the dispute–calling the officer a "white mother-fucker"–but at a disciplinary hearing, he attributed the incident to anti-union animus. The fact that the officer's report referred to plaintiff, whom the officer believed to be a trespasser, as "black male" is an unadorned physical description, not evidence of discriminatory motive. The facts that the incident occurred after plaintiff's shift and that the officer was not plaintiff's direct supervisor also do not cause suspicion that defendant's reason for discharging plaintiff was a pretext. Plaintiff challenges defendant's characterization of his conduct as insubordinate, but he points to disputes concerning non-material facts. The issue is whether managers believed the report of its investigating officers. District court did not err in granting summary judgment for defendant in response to plaintiff's own motion for summary judgment.

Plaintiff, an African American, sought employment as a police officer for almost 20 years. One earlier lawsuit resulted in his being restored to the eligibility list. When finally called up for hire, plaintiff initially "flunked" the medical exam due to a heart condition, but his own cardiologist said he was fine. The independent medical examiner ultimately concluded he did not have heart disease but failed to order certain required additional tests. District court erred in dismissing plaintiff's race discrimination claim because, after refusing to hire plaintiff, defendant discovered he had passed the ceiling age for eligibility; this was "after-acquired evidence" which would not bar his claim, though it might limit recoverable damages. In any event, there was some evidence defendant believed the age bar was not applicable at the time of plaintiff's application. Because plaintiff does not in fact have a disability, his ADA claim was properly dismissed. Plaintiff's challenge to the additional medical tests as unnecessary fails because federal regulations demonstrate such testing is improper only if used to screen out persons with disabilities.

When the school year began, the school bus schedule and routes were chaotic, and the school superintendent demoted the two black women in charge. Prima facie evidence of race and gender discrimination requires a showing that similarly situated white or male employees were treated more favorably. Neither an African American man charged with sexual harassment but not demoted, nor a white manager (whose responsibility for the bus crisis is not explained) meets this requirement. It does not violate Title VII or § 1981 for the superintendent to make transportation managers the "scapegoats" unless they were singled out due to race or gender. Other persons demoted as a result of the bus crisis were white males, and others promoted included black females. "Rude, abrupt, or arrogant" treatment by a supervisor do not constitute an actionable hostile work environment. Where there was no evidence that the superintendent was aware of conversations plaintiffs had with a School Board member, there is no basis for a First Amendment retaliation claim.

Plaintiff, an African-American Loss Prevention Officer, as well as a white Loss Prevention Officer, were terminated after a hidden camera recorded them spending nearly 51 minutes in the sales office, opening drawers and closets, and using a computer to access the internet, all of which activity plaintiff failed to record on his activity log. In plaintiff's federal action for race discrimination and retaliation, district court dismissed some claims as untimely and granted summary judgment on the remaining claims because plaintiff was not performing to defendant's legitimate expectations and therefore could not establish a prima facie case. Where plaintiff concedes he violated defendant's rules, the proper inquiry is whether he was treated more harshly than others who broke the same rules. That did not happen here; both a Caucasian and an African American Loss Prevention Officer were terminated for the misconduct. Other individuals identified by plaintiff as having falsified time logs were not similarly situated because they were not also engaged in other misconduct for an extended period. Nor is there any showing of pretext because defendant's reason for action were not factually baseless or insufficient. Plaintiff's claim of retaliation was not "like or reasonably related" to the allegations of race discrimination in first underlying charge, and he failed to file suit within the 90-day window on his second charge. Six incidents, many not involving plaintiff himself, over a year and a half, does not establish a hostile environment.

Dissatisfaction with plaintiff treasurer's micromanagement of trading and investments, and insubordinate response to correction, were legitimate, non-discriminatory reasons for demoting plaintiff from his position as treasurer for the school board. Plaintiff did not establish race was the real reason. Statement by his subordinate that she had never before worked for an African-American did not connect with the decision makers, both of whom plaintiff himself believed were not prejudiced against him. Paul Vallas, the board's final decision maker, was unaware that plaintiff had campaigned for alderman; so board is not liable under § 1983 for retaliation.

Evidence did not support plaintiff's contention that change in his sales territory was the reason for his poor performance, nor his contention that his supervisor evaluated his performance using criteria different from those she used on his peers. Five years before the discharge, plaintiff had asked for a promotion. His manager responded by saying "we already have Doug Blanchard." The fact that Blanchard is African American does not suggest a policy of quotas and was unrelated to the employment decision at issue. District court properly granted judgment in favor of defendant after jury was unable to reach a verdict on plaintiff's race discrimination claim.

Plaintiff refused a transfer of her credit administration position from Illinois to Wisconsin and was passed over for another position in favor of a candidate with significantly greater relevant work experience. Plaintiff offered no evidence other than unsupported conspiracy theory that defendant's business reason for transferring her position was pretextual. A second position, one held by a white co-worker who sought another job, was also transferred. Nor did plaintiff offer any causal link between her earlier discrimination claim and the transfer decision made two years later.

The Railway Labor Act provides that grievances "on the property" are to be resolved "in the usual manner." This language does not trump a collective bargaining agreement that made the United Transportation Union (not plaintiff's preferred union) the exclusive representative for Union Pacific employees, despite the fact that UTU had not always enforced that provision vigorously.

Plaintiff nurse was unable to lift more than 10 pounds. Seventh Circuit doubts this is a disability within the meaning of the ADA or Rehabilitation Act, but the issue was waived. Plaintiff complains of defendant's failure to engage in the "interactive process" but this failure merely shifts to defendant the burden of production concerning the availability of an accommodation. The burden of proof that accommodation was possible remains with the employee. Here it does not matter because there were no nursing jobs that did not require the ability to lift 10 pounds. Defendant had no duty to place her in an administrative job that she could have performed where there were better qualified applications.

Although plaintiff's doctor imposed lifting restrictions, and the City concluded those restrictions disqualified him from work as an operator of heavy equipment, this does not establish that defendant regarded plaintiff as disabled. Heavy lifting, though infrequent, was an essential function of the operator's job. Plaintiff's proposed accommodations–that somebody else do the lifting for him or that the City permit him to "try and see" whether he could do the work–were not reasonable. The employer is not required to allow the employee to try the job out in order to determine whether some yet-to-be requested accommodation may be needed.

Because of her lifting restrictions, plaintiff INS officer was removed from "outside" activities which required her to transfer file and heavy materials to community locations such as libraries and schools on occasion. Her salary, title, and other job responsibilities remained the same. Plaintiff did not show that her lifting restriction substantially limited her employment generally or precluded her from working in a broad range of jobs. Plaintiff's own unsupported affidavit concerning past difficulties with sleeping, sexual activity, and hair brushing was insufficient to establish long term substantial limitations.

Plaintiff, a professor, won a jury verdict on his claim that the university retaliated against him for taking a stand against sex discrimination when it denied him a summer teaching assignment and an annual merit increase in 1998. Reversing the reduced judgment on that verdict, court notes that plaintiff's only "complaint" is a 1997 letter in which he complained about mistreatment of all faculty members and did not mention sex or gender. The university offered legitimate reasons for its actions, including plaintiff's refusal to furnish a current C.V. or provide student evaluations. Sex discrimination protests that plaintiff made between 1987 and 1991 are far too stale to create an inference of retaliation. Wood, Diane, dissents.

Soon after being promoted and receiving a substantial pay raise, plaintiff anaesthesiologist presented concerns that his colleagues were padding their Medicare reimbursement claims. A few weeks later, he was terminated. The jury awarded back pay and compensatory damages. The district court erred in granting defendant's motion for judgment in its favor on grounds that Illinois would not recognize these circumstances as retaliatory discharge. Reporting a federal crime comports with clearly mandated policy of Illinois. Nor do the anti-retaliation provisions of the False Claims Act operate to bar plaintiff's claim. Court also erred in refusing a punitive damages instruction where there was evidence that plaintiff told defendants they could not fire him because of his complaints, they told him he was "f- - - - d" and they could do as they pleased, they fabricated performance complaints, and they threatened to prevent him from finding another job.

Within 24 hours after her formal written complaint of unfair treatment in training and promotion, plaintiff, a professional pilot, was discharged. The termination notice expressly referred to her letter of complaint and a personnel file note mentioned plaintiff's absenteeism and being "hard to get along with," two criticisms never before documented. The jury awarded $6,000 in compensatory and $3.5 million in punitive damages, which the district court reduced pursuant to statutory caps. Affirming, Court of Appeals rejects the argument that the district court's dismissal of plaintiff's sexual harassment and sex discrimination claims means that her retaliation claim fails. The fact that the court dismissed these claims does not mean her complaints were "completely groundless." Plaintiff did experience delays in training and believed defendant manipulated proficiency checks for herself and other female pilots. Defendant denied plaintiff access to her personnel files, but a comparative male employee was permitted to review his file. Testimony of other female pilots concerning harassment they had experienced was properly admitted because it went to the issue of plaintiff's good faith. Evidence of noncompliance with defendant's own anti-discrimination policy, recording pretextual reasons for plaintiff's discharge, and involvement of management in discharge decision, all supported punitive damages award. Because plaintiff stipulated that her damages ended four years after her termination, district court properly denied reinstatement.

An employee covered by a collective bargaining agreement may nevertheless bring a Frampton action for retaliation based on exercise of workers' compensation rights under Indiana law. Plaintiff's retaliatory discharge claim nevertheless fails. Defendant had filed a workers' compensation claim on plaintiff's behalf and plaintiff had been on leave or light duty for many months. Surveillance videos and testing suggested he was exaggerating his symptoms, and he was discharged for defrauding his employer soon after making a request for additional assistance from the Indiana Industrial Board; but his request was not a complaint against defendant, and there was no evidence it would have resulted in imposing additional costs on defendant. There was a substantial (more than one year) time gap between plaintiff's original worker's compensation claim and his termination. Plaintiff has not shown that defendant's concern for his malingering was a pretext. There was no evidence that defendant knew plaintiff was on pain medication at the time of the video surveillance. Nor does the fact that plaintiff was twice required to work a 12-hour shift on his light duty position establish pretext. There was no evidence of a conspiracy between plaintiff's employer and the claims adjuster. Any other tortious conduct on the part of the claims adjuster (interference with contract) did not occur as part of its procedure for adjusting or settling plaintiff's workers' compensation claim and therefore is not barred by Indiana law, but the district court properly entered summary judgment on that claim because there was no evidence that the adjuster intentionally induced plaintiff's employer to terminate him.

After an incident in which her co-worker pulled open her shirt to expose her breast and commented on the size of her nipple, plaintiff complained of sexual harassment. An investigator concluded she also violated policy with her own graphic comments. Both plaintiff and her co-worker were terminated. Plaintiff's allegations that defendant discriminated on the basis of her sex by failing to train her were properly dismissed because that conduct occurred five years before the limitations period and cannot be linked with events within that period. Sexual harassment claim also fails because although he did control her work assignments, the alleged harasser had no power to hire, fire, or discipline plaintiff and defendant reacted promptly to her complaint about harassment. Absence of a formal harassment policy doesn't change the result because plaintiff did have an effective channel for her complaint. Finally, retaliation claim fails; assuming plaintiff has a prima facie case, there is no evidence of animosity between plaintiff and the investigator, his failure to retain handwritten notes after typing them into his computer is not in bad faith, and many witnesses reported that both plaintiff and her co-worker engaged in sexual talk and tawdry conduct. In fact, defendant's failure to terminate her might itself have constituted sex discrimination.

Defendant's reasons for discharging plaintiff from his high school teaching position–a well-documented history of insubordination, poor classroom performance, and chronic tardiness–were legitimate bases for discharge. Plaintiff's own trial testimony did not cast doubt on these reasons. A statement "you have got to stop making waves and false charges" does not establish retaliation when made by a supervisor who had no power to transfer or terminate plaintiff. Nor does the fact that copies of plaintiff's charges were maintained in his personnel file. District court properly rejected jury's verdict in favor of plaintiff.

Plaintiff was instated as a result of an IDHR order (after a ten-year delay), but she did not survive her probation. Defendant's conduct might constitute a violation of the IDHR order, but it does not constitute retaliation for filing an IDHR charge–in fact, she was better off as a result of the filing of that charge.

If plaintiff can establish a "causal link" between protected expression and adverse action, he has proven his case. Defendant's presentation of a legitimate, non-discriminatory reason for the action creates a jury question, unless the evidence shows defendant would have fired plaintiff anyway, in which case plaintiff was not harmed by the alleged retaliation. Temporal proximity between protected conduct and adverse action is rarely sufficient to create a triable issue on causation. An alternative method of proof is evidence that after engaging in protected activity, plaintiff alone suffered adverse action, although his job performance was satisfactory. For these reasons, in an unpublished order the court affirmed summary judgment in favor of the city on a retaliation claim filed by a former public utilities employee.

After plaintiff complained about a large pay disparity between herself and a junior male surgeon, she was awarded pay raises and the gap narrowed. After her complaint, plaintiff asserted, she was subject to unjustified criticism of her medical skills and impediments to her professional development. Even if her Equal Pay claim is timely, it was properly dismissed on summary judgment because plaintiff's comparative had more training and experience that she did. Denial of career opportunities could be an adverse employment action, but plaintiff did not offer evidence to support her claim. Cases were assigned via a rotation system, and plaintiff did not show that defendants had any involvement in two unsuccessful efforts to find another job. Supervisor's comments (i.e., comment to a nurse that the "only valuable thing to a women are breasts and vagina")